Child Relocation After Divorce
What Is Child Relocation
Child Relocation is the changing of a child’s living arrangements so that it makes it difficult for the child to spend time with both parents.
It is often one of the most common family law questions that we are asked.
If parents have equal and shared parental responsibility, they should try and make a genuine effort to resolve this issue amicably.
If there are no court orders in place, we must look at the legislation and the relevant case law to understand how judges apply the law to individual cases.
The relevant legislation is s65DAA of the Family Law Act.
The section explains the step by step process that the Court is required to follow when considering if a child should be spending equal time or substantial and significant time with each parent.
Child Relocation Cases Australia
Rosa’s Case is one of the leading authorities in Australian Family Law when it comes to the relocation of a child.
A mother started an application as she wanted to live in Sydney after her separation with the 5yr old child’s father.
The young family had recently moved to Mt Isa for the father’s new job and had been living there for only 7 months before the mother wanted to move back to Sydney with the child.
The mother lost her Initial Application in court but later won the application on appeal to the High Court.
The initial judge concluded that the child should stay in Mount Isa and that the father’s proposal for both parents to share parental responsibility was in the best interests and welfare of the child.
The Family Consultant also recommended that the child should stay in Mount Isa as it would not be beneficial if the parents of the child lived so far apart.
The High Court then examined the decision and looked at the circumstances of the mother and if the mother relocating to Sydney provided the best outcome for the child.
In Mount Isa, the mother had to live in a caravan park and had limited opportunities for employment. She supported herself by casual employment and Centrelink payments. The mother was angry and depressed as a result of being in Mount Isa.
In Sydney, she had work opportunities with flexible hours and access to her family support.
The mother’s application was successful in the High Court and she was allowed to then relocate to Sydney.
Successful Child Relocation Cases
This case answers many of the family law questions parents ask us, as it shows us how a court processes information and thinks when making a decision about child relocation.
The court may or may not allow a relocation depending on the specific factors of the case, however always focuses whether or not the relocation will be in the bests interests of the child.
How To Prevent My Child From Moving
The most effective way of preventing child relocation is by ensuring that there are parenting orders or a parenting plan in place.
Normally, if there are court orders already in place there will be an order in relation to relocation.
You should check the last set of Court Orders for this. If this is the case, then if a parent wants to move a considerable distance away, they must obtain permission from the Court.
The Court may not necessarily grant permission as they may not be satisfied that moving away from one parent is in the best interests of the child.
You can oppose the application to stop the other parent from relocating and tell the court why you think the child should not be relocated.
If there are no parenting orders in place, contact us today about getting parenting orders organised.
My Child Has Already Been Relocated
If the other parent takes your child without discussing it with you, you can apply to the court for a Recovery Order to return the child to where they normally live.
A recovery order enables police officers to take action to find, recover and return a child to you.
Further, a recovery order can also prohibit the person from again removing or taking possession of the child. This is critical in child relocation cases, as parents may attempt to then remove the child from the other parents care.
If you were to breach this order, you could be if you attempt to remove or retake possession of the child.
You can apply for a recovery order if you have parental responsibility for the child, or someone concerned with the care, welfare and development of the child.
For example, you may be the person who the child lives or spends time with but there is no parenting order that states this.
You should file your application for a recovery order at the Federal Circuit Court.
If there are no current parenting orders, you should apply for one at the same time as applying for a recovery order.
The Court will then either grant or refuse your application for a recovery order.
In deciding whether to make a recovery order, the Court will always consider what is in the best interests of the child.
If you are unsure of whether or not you should apply for a recovery order, speak to one of our lawyers today.